The qualification of the employment contract
Redaction: Laure Mazurier
Legal resources > Labor law > Qualification of the employment contract
For the provisions of the Labor Code to apply, it is necessary to be in presence of an employment contract, which unites the employee to the employer. The qualification of a contract as an employment contract is therefore crucial because it conditions the application of numerous rights and protections (unemployment insurance, working time limitations, paid holidays, etc.).
The employment contract is not necessarily written: an oral engagement is sufficient.
Three elements must be proven in order to qualify a contract as an employment contract: the existence of a work performance, remuneration and a legal relationship of subordination.
It should be noted that the judicial judge is not bound by the qualifications that the parties themselves give to their contract ( articles 1188 et seq. Of the Civil Code ).
Work performance
The employee undertakes to provide a work service to his employer: it can take various forms.
The Court of Cassation affirmed in a judgment delivered by its social chamber:
“As soon as it is carried out, not as a private activity, but in a relationship of subordination, for the account and in the interest of a third party with a view to the production of a good having an economic value, the activity, whatever it is, regardless of whether it is fun or free from arduousness , is a work performance subject to labor law ”
Soc., June 3, 2009, n ° 08-40.981
This element is therefore relatively easy to prove.
Compensation
The employment contract is a contract for value .
Remuneration can take various forms: in kind (for example the provision of housing) or in sum of money. It can be calculated by time or by task. It can remain in the simple state of a promise, and be tacit or express.
The Court of Cassation even ruled that the simple hope of remuneration could be retained for an employee who worked for free in the hope of being hired ( Soc., May 26, 2010, n ° 05-44.939 ).
The amount of the remuneration is not taken into account.
The link of legal subordination
This last element is decisive and makes the singularity of the employment contract.
It was clearly defined by the social chamber of the Court of Cassation in the following terms:
“The relationship of subordination is characterized by the performance of work under the authority of an employer who has the power to give orders and directives, to control their execution and to penalize breaches”.
Soc., November 13, 1996, n ° 94-1318
In short, this bond of subordination is characterized by direction, control and sanction .
In fact, if the direct proof of these three elements is not made, various elements can be used to establish the existence of the relationship of subordination, in the manner of a bundle of clues : schedules fixed by the employer, the absence of their own clientele, the supply of work tools, the power to impose penalties, etc.
Proof of the relationship of subordination
In principle, the burden of proof lies with the person claiming the existence of a contract of employment.
Presumption of exclusion from employment:
Article L.8221-6 of the Labor Code provides that certain people are presumed not to be employees (activities giving rise to registration or registration).
This presumption can nevertheless be rebutted by proof that the work is performed “under conditions which place it in a bond of permanent legal subordination” .